State v. Peeler ( 2016 )

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STATE v. PEELER—THIRD CONCURRENCE
ROBINSON, J., concurring. I join the majority’s deci-
sion not to disturb State v. Santiago, 318 Conn. 1, 9,
122 A.3d 1 (2015),1 which held that, ‘‘in light of the
governing constitutional principles and Connecticut’s
unique historical and legal landscape . . . following its
prospective abolition, this state’s death penalty no
longer comports with contemporary standards of
decency and no longer serves any legitimate penological
purpose. For these reasons, execution of those offend-
ers who committed capital felonies prior to April 25,
2012, would violate the state constitutional prohibition
against cruel and unusual punishment.’’ My decision to
join the majority’s decision to reverse the death sen-
tence of the defendant, Russell Peeler, is significantly
informed by the unique position that I hold as the only
active member of this court who did not sit to decide
Santiago, which was a four to three decision. In my
view, stare decisis considerations of this court’s institu-
tional legitimacy and stability are at their zenith in this
particular case, given that the only thing that has
changed since this court decided Santiago is the com-
position of this court.2 Having considered Santiago in
light of the arguments raised by the parties in this
appeal, I conclude that it is not so clearly wrong that
we should risk damaging this court’s institutional stabil-
ity by overruling it. Put differently, because it would
imperil our state’s commitment to the rule of law for
it to appear that a change in the composition of the
court resulted in the immediate retraction of a landmark
state constitutional pronouncement, I join in the court’s
decision to uphold Santiago.
The background legal principles governing the doc-
trine of stare decisis are well established. ‘‘The doctrine
of stare decisis counsels that a court should not overrule
its earlier decisions unless the most cogent reasons and
inescapable logic require it.’’ (Internal quotation marks
omitted.) State v. Salamon, 287 Conn. 509, 519, 949
A.2d 1092 (2008). ‘‘This court has repeatedly acknowl-
edged the significance of stare decisis to our system of
jurisprudence because it gives stability and continuity
to our case law. . . . Stare decisis is a formidable
obstacle to any court seeking to change its own law.
. . . It is the most important application of a theory of
[decision-making] consistency in our legal culture and it
is an obvious manifestation of the notion that [decision-
making] consistency itself has normative value. . . .
Stare decisis does more than merely push courts in
hard cases, where they are not convinced about what
justice requires, toward decisions that conform with
decisions made by previous courts. . . . The doctrine
is justified because it allows for predictability in the
ordering of conduct, it promotes the necessary percep-
tion that the law is relatively unchanging, it saves
resources and it promotes judicial efficiency. . . .
‘‘As this court has stated many times, [t]he true doc-
trine of stare decisis is compatible with the function of
the courts. . . . [T]here is no question but that [a] deci-
sion of this court is a controlling precedent until over-
ruled or qualified. . . . [S]tare decisis . . . serve[s]
the cause of stability and certainty in the law—a condi-
tion indispensable to any well-ordered system of juris-
prudence . . . .
‘‘Whether stare decisis serves the interests of judicial
efficiency, protection of expectations, maintenance of
the rule of law, or preservation of judicial legitimacy,
however, is not dispositive. The value of adhering to
precedent is not an end in and of itself, however, if the
precedent reflects substantive injustice. Consistency
must also serve a justice related end. . . . When a
prior decision is seen so clearly as error that its
enforcement [is] for that very reason doomed . . . the
court should seriously consider whether the goals of
stare decisis are outweighed, rather than dictated, by
the prudential and pragmatic considerations that inform
the doctrine to enforce a clearly erroneous decision.
Stare decisis is not an inexorable command. . . . The
court must weigh [the] benefits [of stare decisis] against
its burdens in deciding whether to overturn a precedent
it thinks is unjust. The rule of stare decisis may entail
the sacrifice of justice to the parties in individual cases,
but, far from being immune from considerations of jus-
tice, it must always be tested against the ends of justice
more generally. . . .
‘‘Indeed, this court has long believed that although
[s]tare decisis is a doctrine developed by courts to
accomplish the requisite element of stability in court-
made law, [it] is not an absolute impediment to change.
. . . [S]tability should not be confused with perpetuity.
If law is to have a current relevance, courts must have
and exert the capacity to change a rule of law when
reason so requires. . . . [I]t is more important that the
court should be right upon later and more elaborate
consideration of the cases than consistent with previous
declarations. Those doctrines only will eventually stand
which bear the strictest examination and the test of
experience. . . . The United States Supreme Court has
said that when it has become convinced of former error,
it has never felt constrained to follow precedent. . . .
‘‘[One] well recognized exception to stare decisis
under which a court will examine and overrule a prior
decision . . . [is when that prior decision] is clearly
wrong. . . . The doctrine [of stare decisis] requires a
clear showing that an established rule is incorrect and
harmful before it is abandoned. . . . Because stare
decisis is not a rule of law but a matter of judicial policy
. . . it does not have the same kind of force in each
kind of case so that adherence to or deviation from
that general policy may depend upon the kind of case
involved, especially the nature of the decision to be
rendered that may follow from the overruling of a
precedent.’’ (Citations omitted; emphasis altered; foot-
note omitted; internal quotation marks omitted.) Con-
way v. Wilton, 238 Conn. 653, 658–61, 680 A.2d 242
(1996). ‘‘In short, consistency must not be the only
reason for deciding a case in a particular way, if to do
so would be unjust. Consistency obtains its value best
when it promotes a just decision.’’ Id., 662.
Guided by these general principles, I first observe
that the timing of our consideration of the present case
renders stare decisis considerations particularly strong
with respect to the public’s perception of this court’s
legitimacy in its exercise of its core function of constitu-
tional interpretation. See State v. Ferguson, 260 Conn.
339, 367, 796 A.2d 1118 (2002) (‘‘[w]e will not revisit
the same issues we so recently have decided’’). In con-
trast to other cases, wherein the passage of time has
yielded factual or legal developments that serve as a
basis for a challenge to the decision under attack; see,
e.g., Campos v. Coleman, 319 Conn. 36, 37–38, 123 A.3d
854 (2015) (overruling Mendillo v. Board of Education,
246 Conn. 456, 495–96, 717 A.2d 1177 [1998], and recog-
nizing derivative cause of action for loss of parental
consortium by minor child); State v. Salamon, supra,
287 Conn. 522–28 (interpretation of kidnapping stat-
utes); all that has changed since Santiago was decided
‘‘is the composition of this [c]ourt, which is not a valid
reason for ignoring stare decisis principles.’’ Haynes
v. State, 273 S.W.3d 183, 187 (Tex. Crim. App. 2008),
overruled on other grounds by Bowen v. State, 374
S.W.3d 427 (Tex. Crim. App. 2012); see also Wheatfall
v. State, 882 S.W.2d 829, 843 (Tex. Crim. App. 1994) (The
court rejected the argument that it ‘‘should consider the
changing membership of the [United States] Supreme
Court in our review of their precedent’’ because ‘‘this
[c]ourt would be forced to reconsider every decision
of the [United States] Supreme Court or our [c]ourt
upon changes in membership. Such an endeavor would
defeat one of the essential purposes of stare decisis.’’),
cert. denied, 513 U.S. 1086, 115 S. Ct. 742, 130 L. Ed.
2d 644 (1995). Indeed, as this court observed more than
seventy years ago, ‘‘a change in the personnel of the
court affords no ground for reopening a question which
has been authoritatively settled.’’ Tileston v. Ullman,
129 Conn. 84, 86, 26 A.2d 582 (1942), appeal dismissed,
318 U.S. 44, 63 S. Ct. 493, 87 L. Ed. 603 (1943); accord
Herald Publishing Co. v. Bill, 142 Conn. 53, 62, 111
A.2d 4 (1955) (‘‘[a] change in the personnel of the court
never furnishes reason to reopen a question of statutory
interpretation’’).
The New York Court of Appeals has described the
benefits of decisional stability in the face of the chang-
ing composition of the court, aptly stating that it ‘‘would
have been scandalous for a court to shift within less
than two years because of the replacement of one of the
majority in the old court by one who now intellectually
would have preferred to have voted with the old minor-
ity and the new one. The ultimate principle is that a
court is an institution and not merely a collection of
individuals; just as a higher court commands superiority
over a lower not because it is wiser or better but
because it is institutionally higher. This is what is meant,
in part, as the rule of law and not of men.’’ People v.
Hobson, 39 N.Y.2d 479, 491, 348 N.E.2d 894, 384 N.Y.S.2d
419 (1976); see also People v. Taylor, 9 N.Y.3d 129, 148,
878 N.E.2d 969, 848 N.Y.S.2d 554 (2007) (‘‘Stare decisis
is deeply rooted in the precept that we are bound by
a rule of law—not the personalities that interpret the
law. Thus, the closeness of a vote bears no weight as
to a holding’s precedential value as a controversy set-
tled by a decision in which a majority concur should
not be renewed without sound reasons . . . .’’ [Citation
omitted; internal quotation marks omitted.]); S. Wach-
tler, ‘‘Stare Decisis and a Changing New York Court
of Appeals,’’ 59 St. John’s L. Rev. 445, 455–56 (1985)
(describing ‘‘necessary balance between stability and
innovation,’’ and stating that ‘‘[j]udiciously applied in a
proper case, the doctrine of stare decisis will allay the
fears of those who look with apprehension upon the
ongoing personnel changes in the [New York] Court
of Appeals’’).
Put differently, for me to join this court and near
immediately disturb this court’s so recently decided
landmark decision in Santiago would require me, in
the words of Justice Thurgood Marshall, to embrace
the principle that ‘‘[p]ower, not reason, is the new cur-
rency of this [c]ourt’s decisionmaking.’’ Payne v. Ten-
nessee, 501 U.S. 808, 844, 111 S. Ct. 2597, 115 L. Ed. 2d
720 (1991) (Marshall, J., dissenting); see id. (Justice
Marshall dissented from the court’s decision to overrule
Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L.
Ed. 2d 440 [1987], and South Carolina v. Gathers, 490
U.S. 805, 109 S. Ct. 2207, 104 L. Ed. 2d 876 [1989],
and to permit the admission of victim impact evidence
during the penalty phases of capital trials because
‘‘[n]either the law nor the facts supporting Booth and
Gathers underwent any change in the last four years.
Only the personnel of this [c]ourt did.’’). I agree with
Justice Marshall that ‘‘stare decisis is important not
merely because individuals rely on precedent to struc-
ture their commercial activity but because fidelity to
precedent is part and parcel of a conception of the
judiciary as a source of impersonal and reasoned judg-
ments. . . . Indeed, this function of stare decisis is in
many respects even more critical in adjudication involv-
ing constitutional liberties than in adjudication involv-
ing commercial entitlements. Because enforcement of
the [federal] [b]ill of [r]ights and the [f]ourteenth
[a]mendment [to the United States constitution] fre-
quently requires this [c]ourt to rein in the forces of
democratic politics, this [c]ourt can legitimately lay
claim to compliance with its directives only if the public
understands the [c]ourt to be implementing principles
. . . founded in the law rather than in the proclivities
of individuals.’’ (Citation omitted; emphasis omitted
internal quotation marks omitted.) Payne v. Tennessee,
supra, 852–53 (Marshall, J., dissenting).3
My sensitivity to stare decisis in this case is height-
ened by the fact that we are called on to reconsider the
court’s conclusion in Santiago that the death penalty is
now unconstitutional under our state’s constitution.
‘‘[I]f the doctrine of stare decisis has any efficacy under
our case law, death penalty jurisprudence cries out for
its application. Destabilizing the law in these cases has
overwhelming consequences . . . .’’ Zakrzewski v.
State, 717 So. 2d 488, 496 n.5 (Fla. 1998) (Anstead, J.,
concurring), cert. denied, 525 U.S. 1126, 119 S. Ct. 911,
142 L. Ed. 2d 909 (1999); accord State v. Waine, 444
Md. 692, 702, 122 A.3d 294 (2015) (observing that
‘‘[w]here the [c]ourt has previously recognized a new
[s]tate constitutional standard as fundamental to due
process, deference to that precedent ensures the con-
stancy upon which due process endures’’). Indeed, in
People v. Taylor, supra, 9 N.Y.3d 129, Judge Robert S.
Smith of the New York Court of Appeals explained in
his concurring opinion his decision to join the majority
in overturning a death sentence obtained under an
unconstitutional death penalty procedure statute—
despite dissenting three years before in People v.
LaValle, 3 N.Y.3d 88, 99, 817 N.E.2d 341, 783 N.Y.S.2d
485 (2004), in which the court had invalidated that stat-
ute.4 Judge Smith explained that the ‘‘policies underly-
ing the doctrine of stare decisis, which include stability,
predictability, respect for our predecessors and the
preservation of public confidence in the courts, are at
their strongest where, as here, a court is asked to change
its mind although nothing else of significance has
changed. No one suggests that any development in the
last three years, either in the law or the law’s effect
on the community, has changed the context in which
LaValle was decided. Indeed, we are asked to revive
the very same statute held invalid in LaValle—not a
theoretically impossible step, but a radical one. So far
as I can tell, we have never done such a thing, and the
occasions on which other courts have done it are rare
. . . .’’ (Citation omitted; emphasis added.) People v.
Taylor, supra, 156.
Guided by these authorities, I am not convinced that
any analytical shortcomings in Santiago surpass the
significant stare decisis concerns that would accom-
pany overruling that landmark decision. See, e.g., Dick-
erson v. United States, 530 U.S. 428, 443, 120 S. Ct.
2326, 147 L. Ed. 2d 405 (2000) (‘‘[w]hether or not we
would agree with [the] reasoning [of Miranda v. Ari-
zona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966)] and its resulting rule, were we addressing the
issue in the first instance, the principles of stare decisis
weigh heavily against overruling it now’’). Specifically,
I have reviewed the opinions and briefs filed in Santi-
ago, and determined that the majority in that case did
not unreasonably read the record and the authorities
when it concluded that: (1) the issues decided therein
were raised by the parties, thus affording the state
notice and an opportunity to brief them, had it elected
to do so; and (2) the death penalty now is cruel and
unusual punishment under our state’s constitution in
the wake of the death penalty’s prospective repeal in
No. 12-5 of the 2012 Public Acts. Although reasonable
jurists certainly could—and most emphatically did—
disagree about the merits of Santiago, I do not view
the majority’s decision in that case as so fundamentally
flawed that it warrants overruling so soon after it
was decided.5
Thus, I emphasize my disagreement with the state’s
argument, in its supplemental brief and at oral argument
before this court, that the recency of the court’s deci-
sion in Santiago renders it an appropriate candidate
for overruling, insofar as there has been minimal reli-
ance on it to this point, and that the doctrine ‘‘carries
less force when the court is asked to reconsider consti-
tutional rulings because, unlike in statutory interpreta-
tion cases, the legislature lacks the ability to correct a
judicial mistake.’’ See, e.g., State v. Salamon, supra, 287
Conn. 523 (‘‘[p]ersons who engage in criminal miscon-
duct, like persons who engage in tortious conduct,
rarely if at all will . . . give thought to the question of
what law would be applied to govern their conduct
if they were to be apprehended for their violations’’
[internal quotation marks omitted]); Conway v. Wilton,
supra, 238 Conn. 661 (force of stare decisis is ‘‘least
compelling [when the ruling revisited] may not be rea-
sonably supposed to have determined conduct of the
litigants’’ [internal quotation marks omitted]). I agree
with Justice Palmer’s observation in his opinion in the
present case that the watershed nature of this court’s
decision in Santiago creates, in essence, a different
kind of reliance concern beyond the arithmetically mea-
surable reliance considered at oral argument before
this court and emphasized by Justice Zarella in his dis-
senting opinion.6 See L. Powe, ‘‘Intragenerational Con-
stitutional Overruling,’’ 89 Notre Dame L. Rev. 2093,
2104 (2014) (concluding that ‘‘reliance is rarely a factor
in any decision about stare decisis in a case that does
not involve economics’’ but observing that ‘‘[p]erhaps
reliance in the noneconomic sphere internalizes . . .
the [c]ourt’s view of the likely public reaction to a
formal overruling’’). That reliance concern is particu-
larly heightened in the death penalty context, insofar
as I can imagine nothing that would appear more shock-
ingly arbitrary than for this court to invalidate the death
penalty in Santiago and render a final judgment sparing
the defendant in that case,7 and then—with the substitu-
tion of a newly appointed justice—immediately over-
rule Santiago and hold that the defendant and his
counterparts on death row could potentially face execu-
tion.8 Putting aside the obvious equal protection conse-
quences highlighted by Justice Palmer, this result, as
demonstrated by very recent experience in one of our
sister states, would at the very least strongly appear
to stem solely from when the filing and scheduling of
the defendants’ appeals and the composition of the
panels that heard their cases.9 See State v. Petersen-
Beard, Docket No. 108061, 2016 WL 1612851, *1 (Kan.
April 22, 2016) (four to three decision overruling three
separate four to three decisions issued by differently
constituted panel on same day). This would be the nadir
of the rule of law in the state of Connecticut.10 Put
differently, I find no substantive or procedural errors
in Santiago whose magnitude justifies incurring the
massive risk to our court’s credibility as an institution
that the state asks us to undertake.
Accordingly, I join in the judgment of the court.
1
Unless otherwise noted, all references to Santiago in this opinion refer
to State v. Santiago, supra, 318 Conn. 1.
2
I wish to explain my position that this court properly considered this
constitutional issue, namely, the constitutionality of the death penalty in
the wake of No. 12-5 of the 2012 Public Acts, in the first instance in Santiago,
notwithstanding the fact that it was published well after I joined the court
and its panel ultimately included a recently retired justice. In particular, I
emphasize that I do not view the court’s actions in Santiago as in any way
precluding me from exercising my duty to decide this significant issue as
a matter of first impression.
I recognize that some concerns have been expressed about this court’s
decision to consider the constitutionality of the death penalty in the wake
of Public Act 12-5 in the first instance in Santiago, rather than in this case,
given this court’s policy and practice of deciding important constitutional
issues with a full and current panel of this court whenever possible. See
W. Horton, ‘‘One Thought on State v. Santiago,’’ Horton, Shields & Knox
Appellate Blog (October 28, 2015), available at http://hortonshieldsknox.
com/one-thought-on-state-v-santiago (last visited May 16, 2016) (‘‘it looks
bad for a court when, notwithstanding a constitutional provision that a
justice must stop holding office at age [seventy], a newly appointed justice
has to sit on the sidelines for months, and in this one case years, while a
justice over age [seventy] decides very important cases with which the
new justice may disagree’’); see also D. Klau, ‘‘Supreme Court to Rehear
Arguments in Death Penalty Case,’’ Appealingly Brief (December 1, 2015),
available at http://appealinglybrief.com/2015/12/01/supreme-court-to-rehear-
arguments-in-death-penalty-case (last visited May 16, 2016) (describing
court’s position vis-a`-vis Santiago and present case as ‘‘uncomfortable’’).
By way of background, I note that Governor Dannel P. Malloy appointed
me to this court in December, 2013, to the seat on this court vacated by
the mandated retirement of Justice Flemming L. Norcott, Jr. The constitu-
tionality of the death penalty in the wake of Public Act 12-5 was argued in
Santiago on April 23, 2013, approximately six months prior to Justice Norcott
attaining the constitutionally mandated age of retirement. Justice Norcott
then continued to participate in deliberations as a member of that panel,
including consideration of the state’s subsequent motions for reconsidera-
tion and to stay, in accordance with General Statutes § 51-198 (c). Justice
Norcott’s vote to join the slender majority in Santiago ended a career on
this court in which he had been a leading voice against the constitutionality
of the death penalty. See, e.g., State v. Santiago, 305 Conn. 101, 307 n.166,
49 A.3d 566 (2012); State v. Breton, 264 Conn. 327, 446–47, 824 A.2d 778
(2003) (Norcott, J., dissenting).
I respectfully disagree with the concerns expressed about Justice Nor-
cott’s continued participation in Santiago, to my apparent exclusion from
the opportunity to decide this issue tabula rasa. In my view, Justice Norcott’s
continued deliberation in Santiago pursuant to § 51-198 (c) was wholly
proper and appropriate under the letter and purpose of that statute, despite
the fact that his participation lasted for nearly two years following my
elevation to what had been his seat on this court. To allow prudential
concerns about the exclusion of a newly appointed justice to disenfranchise
Justice Norcott from his continued participation in Santiago nearly eight
months into deliberations on that case—particularly given the magnitude
of the issues considered therein—would have raised the constitutionally
unsavory specter of running out a football game clock on the office of a
member of this court in a case argued well before his retirement and the
appointment of his successor. See Honulik v. Greenwich, 293 Conn. 641,
661–62, 980 A.2d 845 (2009) (This court upheld the constitutionality of § 51-
198 [c] and noted that it relieved a retiring justice from the obligation to
‘‘arbitrarily . . . cease hearing new cases at some point prior to reaching
seventy, effectively cutting his or her term of office short, and without the
possibility of a replacement. If a justice must cease all Supreme Court case
work on the date of his seventieth birthday, then, by necessity, he is divested
of the full authority and responsibility of his office many months before
that date.’’). This is particularly so, given that the circumstances leading to
the lengthy deliberation may well have been completely out of Justice Nor-
cott’s control. See id., 662 (noting that some cases result ‘‘despite all good
faith efforts,’’ in ‘‘misjudgment as to the time required to dispose of an
appeal or delay due to unforeseen difficulties’’).
Thus, the timing of my participation in deciding this issue reflects nothing
more than the following facts: (1) the constitutionality of the death penalty
following the enactment of Public Act 12-5 is an issue of law common to
numerous cases on this court’s docket; (2) accordingly, some case had to
be the first to consider the issue, with Santiago being the first ready case
in line; (3) the length of the court’s deliberations in Santiago were consistent
with the gravity of the issue before the court and the length of the numerous
opinions published in that case; and (4) once this court decided Santiago,
it became necessary to resolve other death penalty cases as they became
ready for consideration, with the present case being the first direct appeal
in line after the conclusion of proceedings in Santiago.
3
In dissenting in Payne, Justice Marshall described the majority’s decision
to distinguish the importance of stare decisis in cases ‘‘involving property and
contract rights, where reliance interests are involved’’ from those ‘‘involving
procedural and evidentiary rules,’’ particularly when ‘‘decided by the narrow-
est of margins, over spirited dissents’’ as creating a ‘‘radical new exception
to the doctrine of stare decisis,’’ applicable to prior decisions with single
vote margins. (Internal quotation marks omitted.) Payne v. Tennessee, supra,
501 U.S. 845, 851. He observed that ‘‘the continued vitality of literally scores
of decisions must be understood to depend on nothing more than the proclivi-
ties of the individuals who now comprise a majority of this [c]ourt.’’ (Empha-
sis omitted.) Id., 851. Justice Marshall eloquently stated that ‘‘the majority’s
debilitated conception of stare decisis would destroy the [c]ourt’s very
capacity to resolve authoritatively the abiding conflicts between those with
power and those without. If this [c]ourt shows so little respect for its own
precedents, it can hardly expect them to be treated more respectfully by
the state actors whom these decisions are supposed to bind. . . . By signal-
ing its willingness to give fresh consideration to any constitutional liberty
recognized by a [five to four] vote ‘over spirited dissen[t]’ . . . the majority
invites state actors to renew the very policies deemed unconstitutional in
the hope that this [c]ourt may now reverse course, even if it has only recently
reaffirmed the constitutional liberty in question.’’ (Citations omitted.) Id.,
853–54. In sum, Justice Marshall stated: ‘‘Cast aside today are those con-
demned to face society’s ultimate penalty. Tomorrow’s victims may be minor-
ities, women, or the indigent. Inevitably, this campaign to resurrect
yesterday’s ‘spirited dissents’ will squander the authority and the legitimacy
of this [c]ourt as a protector of the powerless.’’ Id., 856.
4
In LaValle, the New York Court of Appeals considered the constitutional-
ity of a statute requiring the trial judge to inform the jury that its deadlock
with respect to a sentence of death or life without parole would require the
judge to sentence the defendant to a lesser sentence of life imprisonment
with parole eligibility after twenty to twenty-five years. People v. LaValle,
supra, 3 N.Y.3d 116. The court held that this statutory instruction was
unconstitutionally coercive and that the court had to strike the statute
subject to legislative repair because, under the state constitution, ‘‘the
absence of any instruction is no better than the current instruction under
our constitutional analysis,’’ and ‘‘[l]ike the flawed deadlock instruction, the
absence of an instruction would lead to death sentences that are based on
speculation, as the [l]egislature apparently feared when it decided to pre-
scribe the instruction.’’ Id., 128.
5
In his well researched and scholarly dissenting opinion, Justice Zarella
crafts a test intended to mitigate the seemingly subjective nature of the
existing stare decisis inquiry by requiring the court to engage in a multifactor
balancing analysis after making a threshold determination that the precedent
under attack is, for whatever reason, wrongly decided. Justice Zarella’s
test does not, however, accommodate for degrees of wrong, insofar as he
observes that, ‘‘[i]n addition to placing too little value on precedent, the
wrongness of a previous decision should not factor into the stare decisis
calculus because it is difficult to quantify or measure the degree of a particu-
lar decision’s wrongness,’’ noting that ‘‘the merits determination is indepen-
dent of, and has no impact on, the stare decisis analysis.’’
I respectfully disagree with Justice Zarella’s refusal to consider the relative
degree of ‘‘wrong’’ in engaging in his stare decisis analysis. First, with no
qualitative control other than the balancing of costs of maintaining versus
eliminating a prior decision, it appears to be receptive to overruling prece-
dent in a way that undercuts the salutary features with respect to promoting
stability in the law. Second, this approach ironically appears to overrule
certain well established principles of stare decisis, namely that: (1) the prior
decision must be shown to be ‘‘clearly wrong’’ with a ‘‘clear showing that
an established rule is incorrect and harmful’’; (emphasis added; internal
quotation marks omitted) Conway v. Wilton, supra, 238 Conn. 660–61; and
(2) ‘‘a court should not overrule its earlier decisions unless the most cogent
reasons and inescapable logic require it.’’ (Emphasis added; internal quota-
tion marks omitted.) State v. Salamon, supra, 287 Conn. 519.
In my view, the precedential value of an older decision, unquestionably
correct when decided, might well erode over time as the result of relevant
changes in law and policy, thus rendering a decision to overrule it less of
a shock to the stability of the court and the law. See S. Burton, ‘‘The Conflict
Between Stare Decisis and Overruling in Constitutional Adjudication,’’ 35
Cardozo L. Rev. 1687, 1703–1704 (2014) (describing threshold factors to
examine before deciding merits of whether to overrule precedent, including:
‘‘[1] notice and predictability; [2] legal developments that make the precedent
anomalous; [3] the precedent’s workability; [4] reliance on the precedent;
[5] the quality of the precedent court’s reasoning; and [6] changes in factual
circumstances that erode the precedent’s justification’’ [footnotes omitted]).
Without the benefit of the lessons learned from watching a precedent’s value
evolve over time, I would require a far greater showing of error—near akin
to that required to justify reconsideration of a decision under Practice Book
§ 71-5—to justify the overruling of a decision of extremely recent vintage,
wherein nothing has changed other than the parties and the composition
of the court. In my view, such an overruling would be appropriate only if
the original decision evinced a complete misunderstanding of the governing
legal principles, particularly if compounded by lack of meaningful adversarial
input from the parties to the earlier case. See State v. DeJesus, 288 Conn.
418, 437 and n.14, 953 A.2d 45 (2008) (considering case law not addressed
in State v. Sanseverino, 287 Conn. 608, 625, 949 A.2d 1156 [2008], and
overruling Sanseverino, which held, without briefing from parties, that
appellate remedy in case when jury was not instructed in accordance with
Salamon was judgment of acquittal rather than new trial before properly
instructed jury); see also State v. Sanseverino, 291 Conn. 574, 574–75, 969
A.2d 710 (2009) (following DeJesus in revised opinion issued after grant of
state’s motion for reconsideration); State v. Sanseverino, supra, 287 Conn.
663 (Zarella, J., dissenting) (observing that majority decided remedy issue
sua sponte with no argument or briefing from parties).
6
At oral argument before this court, the state and members of the court
discussed the concept of reliance by considering hypothetical questions
about whether this court could ever overrule its constitutional pronounce-
ment in Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 957
A.2d 407 (2008), namely, that the previous state statutory prohibition against
same sex marriage violated the constitution of Connecticut. Notwithstanding
the United States Supreme Court’s recent decision in Obergefell v. Hodges,
U.S. , 135 S. Ct. 2584, 2593, 192 L. Ed. 2d 609 (2015), I recognize that
the reliance concerns attendant to Kerrigan were numerically greater than
those present in this case, insofar as the legislature changed the statutory
scheme and thousands of our state’s citizens were married in the eight years
since this court’s decision in Kerrigan. Given the life interest at issue here,
I suggest that the reliance interests on Santiago of the defendant and others
presently exposed to the death penalty differ only in kind, and not degree,
from those of the couples who were married as a result of Kerrigan.
7
The defendant in Santiago has already been resentenced to life imprison-
ment in accordance with this court’s decision in that case. See State v.
Santiago, 319 Conn. 935, 125 A.3d 520 (2015) (denying state’s motion for
stay of judgment).
8
Justice Zarella criticizes my position with respect to stare decisis as
flawed by the logical fallacy of ‘‘post hoc ergo propter hoc, or after this,
therefore resulting from it.’’ See Black’s Law Dictionary (10th Ed. 2014)
(defining ‘‘post hoc ergo propter hoc’’ as ‘‘[t]he logical fallacy of assuming
that a causal relationship exists when acts or events are merely sequential’’).
He understands my view to be that, ‘‘[b]ecause the present appeal has
been decided after a change in the court’s membership, the change in the
membership caused or was the reason to overturn Santiago.’’ I believe
Justice Zarella misunderstands my position, which simply is one of correla-
tion, not causation. As a theoretical matter, had the Santiago panel remained
intact, it is theoretically possible that one member of the majority could
have defected and voted in this case to overrule Santiago. Thus, I agree
that, as a purely theoretical matter, the change in panel is merely correlative,
rather than causational with respect to the potential overruling of Santiago.
I, however, do not share Justice Zarella’s optimism about the probable
collective understanding on the part of those who are asked to accept our
court’s decisions as a consistent statement of what the law is, with respect
to the potential overruling of Santiago. Hence, Justice Zarella and I irrecon-
cilably, but respectfully, disagree about the public perception issues that
would attend the overruling of Santiago so soon after it was decided. See
also footnote 9 of this concurring opinion.
To this end, I firmly disagree with Justice Zarella’s observation that my
position with respect to stare decisis in the present case amounts to a
‘‘suggestion that this court is bound, now and forever, to follow any decision,
right or wrong, unless the panel that decided the previous case is identical
to the panel that wishes to overrule that case.’’ I do not believe any such
thing, and to take such a position, would, as Justice Zarella observes, stand
in contrast to the historical record. Indeed, as a practical matter, such a
position would immobilize our case law and render it completely unable to
adapt to changes in law and society. My prudential concerns with respect
to the panel change and public perception concern the posture of this
particular case, which is unique with respect to the juxtaposition of the
controversy of the issue and the timing of the argument and decision.
9
A very recent series of decisions in one of our sister states tells a
cautionary tale about the perception of instability created by the rapid
overruling of decisions upon the change of a state Supreme Court’s member-
ship. In Doe v. Thompson, Docket No. 110318, 2016 WL 1612872, *23–26
(Kan. April 22, 2016), and two companion cases, State v. Redmond, Docket
No. 110280, 2016 WL 1612917, *5 (Kan. April 22, 2016), and State v. Buser,
Docket No. 105982, 2016 WL 1612846, *7 (Kan. April 22, 2016), the Kansas
Supreme Court concluded, in four to three decisions, that certain 2011
amendments to that state’s sex offender registration act—such as extension
of registration periods, special notations on driver’s licenses, and increased
‘‘active’’ availability of registrant information online—were punitive, rather
than regulatory, in nature; this rendered their retroactive application to
previously convicted sex offenders a violation of the ex post facto clause
set forth in article one, § 10, of the United States constitution. One of the
four jurists comprising the majority in those cases was a trial court judge
who was temporarily assigned to hear cases because of a vacancy on the
court created when one of the justices was appointed to a seat on the United
States Court of Appeals for the Tenth Circuit. See Doe v. Thompson, supra,
*26 n.1; State v. Redmond, supra, *5 n.1; State v. Buser, supra, *7 n.1.
A new justice, Caleb Stegall, was subsequently appointed to the vacancy
on the Kansas Supreme Court. After hearing argument in State v. Petersen-
Beard, Docket No. 108061, 2016 WL 1612851, *1 (Kan. April 22, 2016), Justice
Stegall authored a four to three decision, which was released on the same
day as Doe, Redmond, and Buser, and overruled those decisions. Id., *1. The
majority opinion in Petersen-Beard adopted large portions of the dissenting
opinion in Doe, and concluded that the 2011 amendments to the sex offender
registration act were not punishment and, therefore, could not be held to
constitute cruel and unusual punishment under the Kansas constitution or
the eighth amendment to the United States constitution. Id., *4–16. As Justice
Johnson, the author of the majority opinion in Doe, Redmond, and Buser,
explained in his dissent, the court’s conclusion in Petersen-Beard did not
affect the judgments obtained in the prior three cases, notwithstanding a
court-ordered delay in publication pending argument and a decision by a
‘‘newly constituted court’’ in Petersen-Beard, the ‘‘apparent rationale [of
which] was to make the holding in [Doe, Redmond, and Buser] applicable
solely to the parties in those cases.’’ Id., *18; see also id. (‘‘Plainly stated,
all of those litigants won on appeal, and the [2011] amendments cannot be
applied to them. But they had to wait for many months—unnecessarily in
my view—to reap the benefits of their respective wins. I find that to be a
denial of justice.’’).
Interestingly, neither the majority nor the dissent in Petersen-Beard con-
sidered the doctrine of stare decisis, as it affected the Kansas court’s obliga-
tion to follow its own recent precedents, with respect to that decision.
Reaction to the rapid overruling was, however, widely noticed, and primarily
attributed to the change in personnel of the Kansas Supreme Court. One
scholarly commentator, Professor David Post, described the Kansas
Supreme Court’s action in Petersen-Beard, which required ‘‘all other . . .
sex offenders in the state with convictions before 2011’’ to register, while
sparing the defendants in Doe, Redmond, and Buser, as ‘‘seem[ing] to violate
the very fundamental notion, embedded in our idea of ‘due process of law,’
that like cases are to be treated alike—someone in precisely the same
situation . . . will have to register . . . while [the defendants in Doe, Red-
mond, and Buser] will not.’’ D. Post, ‘‘In a Single Day, the Kansas Supreme
Court Issues Important Constitutional Opinions—and Overrules Them,’’
Washington Post (April 25, 2016), available at https://www.washingtonpost.
com/news/volokh-conspiracy/wp/2016/04/25/in-a-single-day-the-kansas-
supreme-court-issues-important-constitutional-opinions-and-overrules-
them (last visited May 16, 2016). Discussing the change in the court’s person-
nel, Professor Post describes as ‘‘a bit unseemly’’ the fact that ‘‘[t]his strange
circumstance seems to have come about because the Kansas court was
short-handed.’’ Id.; see also D. Weiss, ‘‘Kansas Supreme Court Issues Three
Opinions Then Overrules Them on the Same Day,’’ ABA J. (April 25, 2016)
(‘‘[t]he reason for the change in stance was a new justice who joined the
court, taking the place of a senior district judge who was filling a vacancy’’),
available at http://www.abajournal.com/news/article/kansas_supreme_
court_issues_three_opinions_then_overrules_them_on_the_same (last vis-
ited May 16, 2016); S. Greenfield, ‘‘What a Difference a Day Makes, Kansas
Edition,’’ Simple Justice: A Criminal Defense Blog (April 26, 2016), available
at http://blog.simplejustice.us/2016/04/26/what-a-difference-a-day-makes-
kansas-edition (last visited May 16, 2016) (An article observing that Petersen-
Beard was inconsistent with the doctrine of stare decisis, and stating that
the ‘‘problem arose because one seat at the Kansas Supreme Court was
filled by one [judge in Doe, Redmond, and Buser], and another [judge in
Petersen-Beard]. The [c]ourt was split, three to three, on the issue, so that
last [vote] was the tie breaker.’’); T. Rizzo, ‘‘Sex Offenders Win and Lose in
‘Peculiar’ Rulings by the Kansas Supreme Court,’’ Kansas City Star (April
22, 2016), available at http://www.kansascity.com/news/local/crime/article
73328242.html (last visited May 16, 2016) (quoting state attorney general’s
description of decisions as ‘‘peculiar’’ and stating that ‘‘[t]he highly unusual
circumstance appear[s] to be the result of a one-justice change in the makeup
of the court’’).
Although public reaction should not sway our decisionmaking, I cannot
ignore the likelihood, vividly illustrated by the reaction to the Kansas
Supreme Court’s recent decision in Petersen-Beard, that such rapid overrul-
ing of a major constitutional precedent would be attributed solely to the
change in the court’s composition. This indicates to me that overruling
Santiago would present the risk of shaking our citizens’ confidence in our
court as an institution, betraying it as a collection of individuals who make
seemingly arbitrary decisions. As I stated previously, the majority’s analysis
in Santiago is not so unreasonable or fundamentally flawed as to justify
taking that risk in the public’s confidence in this court, and the judiciary
as a whole.
10
Thus, I find wholly unpersuasive the state’s arguments that Santiago
‘‘is no obstacle to this court issuing a correct legal decision on the question
of whether capital punishment violates the state constitution,’’ and that ‘‘the
only result in [this case] that could undermine the public faith in the integrity
of this court . . . would be an affirmance of Santiago . . . based on the
principle of stare decisis. If [this] court believes that Santiago . . . properly
decided that capital punishment violates the Connecticut constitution, then
it should so hold. But if a majority of this court believes that Santiago . . .
is incorrect, justifying affirmation of that breach through a statement that
the court believes it tied its own hands would have a deleterious effect . . .
on the public’s perception of the procedural fairness of the criminal justice
system and diminish public confidence in the rule of law.’’ (Citation omitted;
internal quotation marks omitted.) In my view, any concerns in the public’s
confidence about this court’s technical fidelity to the adversarial appellate
decision-making process in Santiago—a matter on which the majority and
dissent in that case disagreed energetically—are drastically outweighed by
the public perception of arbitrariness that would result from the defendant
in that case, Eduardo Santiago, getting to live, and the defendant in the
present case facing the prospect of lethal injection, for no reason beyond
the fact that Santiago’s case happened to come up first on this court’s docket
and was heard by a slightly different panel of this court. See footnote 2 of
this concurring opinion.